Author Archive | Jeff Rowes (Institute for Justice), guest-blogging

All of us at the Institute for Justice want to thank Eugene for giving us an opportunity to discuss our latest case this week (previous posts here, here, here, and here).  I want to use this last post to respond to a few comments.

First, some people have argued in the comments that just because a law is arbitrary or irrational, it’s not unconstitutional.  That’s actually incorrect.  The Supreme Court has always said that the constitutional standard in the rational basis context (including the equal protection and substantive due process contexts) is arbitrariness or irrationality.  If a statute is arbitrary or irrational, then it’s unconstitutional.  That’s con law 101.

Next, some readers may not yet be convinced that the facts will show the genuine irrationality of throwing our clients in prison for using charitable funds to make more marrow donations happen.  One enterprising commentator even did independent research on statistics to try to show that donating marrow isn’t as safe as we say it is.

We don’t need to prove the facts in a blog post (that’s for trial), but this discussion of the facts highlights something important: facts matter.  As I said yesterday, a presumption of constitutionality is fine as long as it’s ultimately rebuttable through the presentation of evidence.  The problem with taking the current standard (“negative every conceivable justification”) too literally is that doing so amounts to transforming the rebuttable presumption of constitutionality into an irrebuttable one.

Fortunately, courts don’t generally take the “negative every conceivable standard” literally.  There are hundreds of winning rational basis cases across the country and the winning plaintiffs didn’t actually “negative every conceivable” justification for the invalidated government action.  And what would it mean anyway to “negative” something and how could a lawyer know when she’d “negatived” literally [...]

Today I’d like to discuss how to apply principled judicial engagement to the bone marrow case (see previous posts here, here, and here), and I hope to explain this in a way that responds to some of the concerns in the comments that this case may lead to open-ended judicial activism.  Judicial engagement provides meaningful rational basis review (call it rational basis with “bite,” if you’d like) without opening the door to activism, amorphous “privacy”-type rights, or any other personal preferences of judges.

The constitutional interest at stake in the bone marrow case is rooted bothin the natural liberty the people retained in ratifying the Constitution and in the longstanding historical practices of Americans.  Until 1984, it had never been illegal to participate in safe, accepted, lifesaving medical treatment just because someone involved received compensation.  No one has to squint at penumbras cast by, or emanations from, the various enumerated rights to identify the right our clients are asserting in the bone marrow case.  Not only is there a substantial historical basis for this very specific constitutional interest (as opposed to nebulous “rights” that could lead to anything), its existence is consistent with the intuitions of most people about what legitimate constitutional interests look like.  As I said yesterday, most of us would surely agree that there would be a constitutional aspect to a law criminalizing safe, effective, lifesaving medical treatment for the aged or the seriously ill as part of an effort by government-run healthcare to cut costs.

The next step is how to apply rational basis review to this right in a meaningful way that respects legitimate legislative prerogatives and does not allow judicial activism.  We can certainly begin with a presumption of constitutionality, as the rational basis test does.  The key is that this [...]

In the past two posts, I outlined the Institute for Justice’s constitutional challenge to the bone marrow provision of the National Organ Transplant Act.  In short, our clients want to use strategic incentives such as $3,000 scholarships to incentivize more lifesaving bone marrow donations, but doing so is considered criminal organ-selling.

Today, I’ll discuss the standard of review that applies to the bone marrow case, called the “rational basis test,” and critique the constitutional philosophy known as judicial minimalism.  Tomorrow, I’ll talk about how principled judicial engagement works (as opposed to judicial activism, which is a legitimate, though overblown, concern).

The bone marrow case is about unenumerated rights so before getting to the rational basis test, let’s briefly discuss unenumerated rights.  Among some conservatives, unenumerated rights are met with glib dismissal, often along the lines of “Last time I checked, the Constitution didn’t say anything about [asserted right X].”

But no one seriously disputes that unenumerated rights exist, although there is considerable debate over their nature and scope.  Who doubts that we have the right to travel or vote or raise children?  The right to earn an honest living in the lawful occupation of your choice was among the first unenumerated rights the Supreme Court recognized and that right has an undeniable basis in the Privileges or Immunities Clause of the Fourteenth Amendment (see Randy Barnett’s outstanding scholarship).

In terms of the bone marrow case, the right at stake is the right to defend human life through safe, effective, lifesaving, and otherwise legal medical treatment.  Is there serious doubt that this right exists?  Suppose Congress passed a law forbidding doctors from providing medical treatment to the sickest or oldest Americans in an effort to control healthcare costs.  Wouldn’t that obviously violate the rights of doctors and patients?  Until Congress [...]

Yesterday, I sketched the legal theory behind the Institute for Justice‘s challenge to the National Organ Transplant Act of 1984 in which our clients seek to strike down the provision that makes it a serious crime to compensate bone marrow donors.

Today, I’d like to explain the history of NOTA and why the inclusion of bone marrow in the statute is so irrational as to render that part of the law unconstitutional.  This history will set up my posts tomorrow and Thursday in which I’ll discuss the applicable standard of review (rational basis test) and how judges should judge.  I will specifically take on the view, expressed in some of the comments yesterday, that in cases like this, government power should be limited only by the ability of judges and government lawyers to dream up “conceivable” justifications for deprivations of liberty, even if those imaginary justifications have literally nothing to do with what the legislature intended.

We know from 1,500 pages of detailed legislative history why NOTA was passed.  NOTA is the result of a wonder-drug called cyclosporine (a protein found in a Norwegian soil fungus) that can prevent the immune system from attacking a donated organ as a foreign invader such as bacteria.  In short, cyclosporine made widespread organ transplantation possible.

The FDA approved cyclosporine in 1983 and suddenly the big obstacle to organ transplants—especially for tens of thousands on kidney dialysis funded by the federal End-Stage Renal Disease program—was the shortage of organs.  The media was filled with pleas from celebrity spokespeople like Gary Coleman of the sitcom Diff’rent Strokes (a kidney recipient), which transformed organ shortages into a major public issue.

Various committees of the House (led by then-Rep. Al Gore) and Senate held hearings between the summer of 1983 and spring of 1984.  [...]

Thanks Eugene for letting me guest-blog this week about the Institute for Justice’s latest case: the first ever constitutional challenge to the National Organ Transplant Act (NOTA).  [youtube]http://www.youtube.com/watch?v=GOO2kQZbqB0[/youtube]We’re asking the courts to enjoin the Attorney General from enforcing the provision of NOTA that makes it a serious crime to compensate bone marrow donors.

I’ll use today’s post to sketch our constitutional theory.  Then, in the following days, discuss the history of NOTA, the standard of review called the “rational basis test,” the proper role of judges, and by Friday I’ll wrap things up with responses to comments.

Bone marrow transplantation is a lifesaving treatment for 70 deadly blood diseases, including cancers such as leukemia and lymphoma.  Most people who need a transplant need one from a stranger, and tens of thousands have died because they lacked donors.  Our clients want to increase the number of unrelated donors by having a charity offer them a $3,000 scholarship, a housing allowance, or gift to the donor’s favorite charity.  Unfortunately, using scholarships to save lives is considered organ-selling under NOTA, a major federal crime.

We know what Congress intended when it enacted NOTA.  1,500 pages of detailed legislative history make it clear that Congress wanted to outlaw markets in kidneys and other solid organs.  Congress didn’t like that organ surgery is invasive, that donated organs don’t grow back, and that organs would flow from poor to rich on an open market (I’ll discuss tomorrow why the relief we seek won’t give rise to markets).

Congress didn’t intend to criminalize compensation for renewable cells such as blood or sperm.  In fact, the Conference Report the House and Senate jointly sent to President Reagan with the bill he signed said so.

Congress included bone marrow in the statute by mistake.  A “bone marrow” transplant involves [...]